Prepare your client:
Thorough preparation is the key to a successful mediation and it is a concept that comprises several different aspects. If there are proceedings on foot your client will have been required to articulate their legal “position” – their best case. This is not likely to be the basis on which the matter resolves at the mediation. Consider how to prepare your client for this reality – it is confronting for parties to learn in the middle of a mediation that compromise is required. If proceedings are not on foot, ensure your client is fully aware of the purpose of the mediation – that negotiation and compromise are essential elements of this dispute resolution forum. If legal technicalities or “being right” are the focus of attention consider how you will address this in advance of the mediation or whether mediation is the ideal process for your client. Arbitration might be a better alternative for parties who feel more comfortable with a decision being made by a third party.
Sometimes, it can be difficult for lawyers to move away from “being right” about the legal position and, as a consequence, to struggle to encourage clients to see the bigger picture about the benefits of reaching a good, if not perfect, agreement at a mediation. For many clients providing the agreement meets their personal interests, whether or not it could, on a technical level, be better, matters not a jot. For clients, closure in real life, often means more than being right at law.
It is also helpful to think about how you will conduct yourself in the mediation particularly if you have not had much experience, or many positive experiences, with the other lawyer. Each mediation is a new opportunity for agreement but if you fear the dynamic between the professionals is less than ideal, consider letting me know in advance. There can be many reasons why a matter is challenging for one (or all) of the lawyers involved, but my role is to assist in the communications and I can do this best, if I am armed with all the relevant information as I embark on my own preparations.
From the moment you agree to mediation, preparation should include a focus on the ways to reach a compromise, not ways to widen the conflict. This requires a change of focus for both client and solicitor and requires everyone to come to the mediation with the technicalities of the case in hand as well as the various options for resolution identified and considered.
Prepare the other important people:
Preparation is important for everyone involved including the party, their lawyer; the other client; the family/influencers; the experts; the mediator. The more you think about who needs which information and how much time to meaningfully process that information is required, the more you increase the chances of success. No one makes good decisions if they feel frustrated, under pressure or ill-informed.
- Consider how you can build trust and a resolution focus with the other lawyer and their client – it is in your interests to been seen as reasonable in the lead up to the mediation rather than purely adversarial: the moment you agree to mediate is the moment to switch to a “resolution” focus.
- Consider what material the other party is reading in the lead up to the mediation. How agitated and threatened are they likely to be feeling? What can you do to demonstrate to them and the other lawyer that you/your client is intent on finding a resolution?
- What do other people of significance (new partners, parents, adult children) need to know about the mediation and mediation process? How can they be marshalled into encouraging a resolution focus? Focussing on and fuelling past conflicts is not usually the way to unlock compromise.
Prepare the case:
- Take good instructions, spend time with your client working out what matters to them and what is legally sustainable.
- Gather the information you need to support your case. If there are elements of your case that the evidence does not support, start thinking about whether there is any traction in maintaining that aspect of the argument. It doesn’t necessarily mean letting go of your entire case.
- Work out what the information gaps are and whether they matter. For example, is it a barrier to reaching agreement if you don’t have a complete answer to your questions (in some cases it is, in many it is not). Can you agree to disagree but still find a compromise? If the lack of information is a barrier, consider what is needed and whether I can assist you to obtain it.
- Identify the client’s interests. What do you want from life in the bigger picture sense. Workshop the various options for achieving those goals BEFORE the mediation and identify whether the interests are realistic and can be achieved. If they cannot, begin thinking about alternate scenarios.
- Enter the negotiation/compromise zone and work out a way to stay there. Mediations are not usually a matter of waiting for the other party to agree with you. Both parties expect the other to have made some compromise when they are being asked to do the same. If you have no room to move in your case, consider whether mediation is the right forum. Perhaps arbitration is a better alternative.
- Marshall the team. Consider who will attend the mediation (eg is counsel/a support person required? Has the other party been informed? What is their likely response? How best to inform them?) Identify what you would like to know about your mediator and their mediation process.
- Provide a Matter Summary (please don’t call it a “Position Statement”) to the other party and consider your audience and the timing of when you provide it. The person (not the lawyer) you are going to negotiate with in the very near future is going to read it and, in all likelihood, disagree with aspects of it. Like you, they are also likely to be apprehensive about the mediation. Consider how you can put your case in the least adversarial/critical manner. You are more likely to make progress at the mediation if you don’t totally alienate the others in advance. You can always provide more details of the contentious information to the mediator separately so the issues can be raised in the most constructive manner possible.
- Consider what information your mediator requires – all the court documents? All the expert reports? The Matter Summary – definitely; other material you want the mediator to read? The more time you give me to read and prepare, the more time I am able to devote to the preparation of the matter.